Excerpt: - .....to the conclusion that the petitioners have not adduced any prima facie evidence to show that the suit property is the property of kandaswami chettiar and subbaraya chettiar and that on the other hand the temple had adduced prlma fade evidence showing that it constitutes a temple endowment and that the balance of convenience lay in favour of the temple, because the temple having obtained a valid certificate under the act, it follows that possession should go to the temple till the petitioners are able to establish their title to the property. in addition, it was also clear that the petitioners would not suffer any irreparable injury by possession being taken by the temple. therefore, applying the principles for granting or withholding an injunction, the learned city civil judge on the.....

Judgment:ORDER

Ramaswami, J.

1. This is an application for the issue of an ad interim injunction pending disposal of C.C.C. A. No. 81 of 1957.

2. The facts are : In Tiruvanmiyur there is a temple by name Sri Maruntheswara-swami temple. It is represented by its executive officer, Umapathi Desikar. Among the properties claimed as temple endowments there is an item, viz., house bearing door No. 21, Mari Chetti Street, Mylapore. The executive officer applied for a certificate under Section 87 of the Hindu Religious and Charitable Endowments Act, 1951, on account of his being obstructed or prevented in taking possession of this property by persons claiming under a former trustee, one Kanda-swami Chettiar. The Endowments Commissioner, following the procedure prescribed in Section 87, has issued a certificate. Thereupon the petitioners claiming under the former trustee have filed O.S. No. 872 of 1957 in the City Civil Court, Madras, for the reliefs of declaration, etc., that the property in question is not a religious endowment but it is joint family property belonging to the family of Kandaswami Chettiar. The petitioners filed an application for an interim injunction restraining Umapathi Desikar from executing or enforcing the certificate issued under Section 87.

3. The learned City Civil Judge took upon himself the wholly supererogatory task of examining at great length the merits of the petitioners' case and came to the conclusion that the petitioners have not adduced any prima facie evidence to show that the suit property is the property of Kandaswami Chettiar and Subbaraya Chettiar and that on the other hand the temple had adduced prlma fade evidence showing that it constitutes a temple endowment and that the balance of convenience lay in favour of the temple, because the temple having obtained a valid certificate under the Act, it follows that possession should go to the temple till the petitioners are able to establish their title to the property. In addition, it was also clear that the petitioners would not suffer any irreparable injury by possession being taken by the temple. Therefore, applying the principles for granting or withholding an injunction, the learned City Civil Judge on the merits came to the conclusion that the petitioners were not entitled to the injunctions asked for and dismissed the application. Hence the Appeal and the application for interim injunction.

4. I have just now mentioned deliberately that the learned City Civil Judge had taken upon himself the wholly supererogatory task of examining the claim put forward by the petitioners on merits. In fact the order of the learned City Civil Judge shows an inadequate comprehension of the relevant sections of the Hindu Religious and Charitable Endowments Act apparently on account of the fact that the relevant provisions were not placed before him by the advocates appearing on either side. The relevant sections are Sections 87, 93, 62 and 57 of the Hindu Religious and Charitable Endowments Act.

5. The scope of Section 87 has recently been discussed by me in In re Thiruvengada Mudali and Ors. Cr.R.C. No. 740 of 1957 wherein I have reviewed the entire previous case-law on the subject. Section 87 empowers the issue of a certificate by the Commissioner after giving notice to the affected persons and hearing their objections, if any. There is an appeal provided from the order of the Deputy Commissioner. On the issue of such a certificate and after the disposal of the appeal, if any, the lawfully appointed trustee or executive officer has got to present it to the Magistrate of the First Class having jurisdiction and that Magistrate on such an application has to direct delivery to the person appointed as aforesaid, possession of the religious institution, records, accounts or properties thereof, as the case may be, comprised in the certificate. The powers of an executing Court have been repeatedly laid down in a long line of decisions which have been set out in an analytical and exhaustive statement of the case-law at page 690 and following Section 38, No. 8 of the A.I.R. Commentaries on the Civil Procedure Code, 6th Edition (1957) Vol. 1; and also in the foot-notes to Mulla's Code of Civil Procedure, 12th edition, Vol. 1, page 166. The latest and final pronouncement is that of the Supreme Court in Jai Naraln v. Kedar Math (1956) S.C.J. 301 : (1956) An. W.R. 151 : (1956) 1 M.L.J. (S.C.) 151. The powers of a Magistrate under Section 87 are neither more nor less than that of an executing Court. He cannot go behind the certificate. He must take the certificate as it stands. He has no power to entertain any objection as to the validity of the certificate or the legality or correctness of it or that the Court which passed it had no jurisdiction to pass it. He cannot alter, vary or add to its terms even by consent of parties. He is not entitled to refuse to execute it. See Kinnayakka v. Naranappayya : AIR1947Mad33 Chidambaram Chettyv. State (Crl. R.G. No. 466 of (1957). Since reported in : (1958)1MLJ314 Pubbiri alias Perumal Goundan v. Govinda Mudaliar (Crl. M.Ps. No. 740 and 741 of 1957). Since reported in : (1957)2MLJ617 Marudan and two others v. Perumal and Suppayyan Crl. R.C. No. 638 of 1957.

6. The only remedy of an aggrieved party is to file a suit and the filing of such a suit is specifically excluded from the bar of Section 93 of the Act as well as the consequences arising from the second proviso to Section 87. Section 93 lays down:

No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in conformity with, the provisions of this Act.

7. The second proviso to Section 87 states:

Provided also that for the purpose of proceedings under this section, the certificate aforesaid shall be conclusive evidence that the properties to which it relates belong to the religious institution.

8. In the other words, but for the third proviso to Section 87 which lays down ' Provided further that nothing contained in this section shall bar the institution of a suit by any person aggrieved by an order under this section for establishing his title to the said property,' by reason of Section 93 as well as the second proviso to Section 87, no one would be allowed to agitate in a civil Court a claim of title to the property which has been held to be a religious endowment by the Commissioner and is comprised in the certificate as such.

9. The suit which by reason of the third proviso to Section 87 can be maintained in a civil Court is one which arises under Section 57 of the Act. Section 57 enu-merates the jurisdiction of the Deputy Commissioner. Clause (c) enables him to decide whether any property or money is a religious endowment. It is only by reason of this jurisdiction that he is empowered to enquire into the question whether certain property is a religious endowment or not and he is able to issue the certificate contemplated in Section 87. Section 57 is jurisdictional and Section 87 is procedural.

10. In regard to a decision by the Commissioner relating to any matter specified in Section 57, any party aggrieved can file a suit and which suit is specifically taken out of the operation of Section 93 and the conclusive effect of the certificate under the second proviso to Section 87. In the case of such a suit the Court may modify or cancel such an order, but it shall have no power to stay the Commissioner's order pending disposal of the suit as provided in Section 62 of the Act. This has been explained in Nallamuthu Chimpireyya In re : AIR1953Mad219 .

11. The net result of this analysis is that this application for issue of an injunction has got to be dismissed and is hereby dismissed.